1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 SOUTHERN DISTRICT OF CALIFORNIA 10 11 STUDY SMARTER LLC, Case No.: 22cv471-LL-BGS
12 Plaintiff, ORDER DENYING MOTION 13 v. FOR APPOINTMENT OF INTERNATIONAL PROCESS 14 STUDYSMARTER UG, et al, SERVER 15 Defendants. [ECF Nos. 7, 8] 16
17 18 This matter is before the Court on Plaintiff Study Smarter LLC’s Ex Parte 19 Application for Order Appointing International Process Server, filed on May 11, 2022, to 20 appoint Crowe Foreign Services of Portland, Oregon to effect service on Defendant 21 StudySmarter UG (“Defendant”),1 a limited liability company existing under the laws of 22 Germany. ECF No. 7. Plaintiff filed a virtually identical successive ex parte application 23
24 25 1 Plaintiff’s complaint and ex parte applications name ten Doe Defendants without making specific allegations as to the Doe Defendants. The Federal Rules of Civil Procedure make 26 no provision for the use of fictitious defendants. See Fed. R. Civ. P 10(a); Molnar v. Nat’l 27 Broad. Co., 231 F.2d 684, 687 (9th Cir. 1956); Rojas v. Sea World Parks & Ent., Inc., 538 F. Supp. 3d 1008, 1030-31 (S.D. Cal. 2021). Plaintiff is advised to review the Federal Rules 28 1 (omitting the statement that Plaintiff has 90 days to effect service on Defendant), 2 declaration, and identical exhibits seeking the same action from this Court on June 30, 3 2022. ECF No. 8. For the reasons discussed below, the Court DENIES Plaintiff’s 4 applications without prejudice. 5 I. LEGAL STANDARD 6 Service of process on a limited liability company in a foreign country may be made 7 in any manner prescribed by Rule 4(f), excepting personal delivery under Rule 8 4(f)(2)(C)(i). Fed. R. Civ. P. 4(h). If service is sought on a defendant in a country that is 9 party to the Convention on Service Abroad of Judicial and Extrajudicial Documents in 10 Civil and Commercial Matters (the “Hague Convention” or “Convention”), opened for 11 signature Nov. 15, 1965, 20 U.S.T. 361, 658 U.N.T.S. 163, compliance with the 12 Convention’s provisions is mandatory. Volkswagenwerk Aktiengesellschaft v. Schlunk, 486 13 U.S. 694, 705 (1988). The primary means of accomplishing service under the Convention 14 is through the receiving country’s Central Authority. Brockmeyer v. May, 383 F.3d 798, 15 801 (9th Cir. 2004). The Convention also permits certain enumerated alternate methods of 16 service if the receiving country does not object, and countries may designate additional 17 methods of service circumscribed by the Convention. See Water Splash, Inc. v. Menon, 137 18 S. Ct. 1504, 1508 (2017); Schlunk, 486 U.S. at 699. Rule 4(f) gives effect to the Hague 19 Convention by incorporating the United States’ treaty obligations into the Federal Rules of 20 Civil Procedure. See Fed. R. Civ. P. 4(f) advisory committee’s note to 1993 amendment. 21 See also Brockmeyer, 383 F.3d at 804 (Rule 4(f)(1) affirmatively authorizes use of a 22 Central Authority under the Hague Convention), 805–06 (Rule 4(f)(3) affirmatively 23 authorizes federal district courts to direct any form of service not prohibited by the 24 Convention if a party obtains prior approval from the court); Rio Props. v. Rio Int’l 25 Interlink, 284 F.3d 1007, 1015-16 (9th Cir. 2002) (court-directed service under Rule 4(f)(3) 26 is as favored as service available under Rule 4(f)(1) unless prohibited by the Hague 27 Convention.) Service in a foreign country is not subject to the general time limits on service 28 1 of process. Fed. R. Civ. P. 4(m); Lucas v. Natoli, 936 F.2d 432, 432-33 (9th Cir. 1991) (per 2 curiam). 3 II. DISCUSSION 4 The United States and Germany are parties to the Hague Convention.2 Germany has 5 objected to receive service by alternate methods, prohibiting service by mail or through 6 judicial agents on a party in Germany.3 Therefore, service to a party in Germany must 7 proceed through its Central Authority. Broad v. Mannesmann Anlagenbau AG, 196 F.3d 8 1075, 1076 (9th Cir. 1999) (noting that Germany requires requests for service of process 9 to be addressed solely to the designated central authority). 10 Plaintiff states that it has retained Crowe Foreign Services (“CFS”) of Portland, 11 Oregon, and its employee Celeste Ingalls, to effect service upon Defendant “by liaising 12 with and working directly with the Central Authority of Germany in accordance with 13 German law and procedure.” ECF No. 8 ¶ 5. Plaintiff submits that “[s]ervice of process via 14 the Hague Convention must be preceded by an Order from this Court appointing an 15 International Process Server to comply with the requests of the German government” and 16 requests that this Court appoint Ingalls “as the international process server to request 17 service in accordance with the Hague Service Convention.” Id. ¶ 6. In support of its 18 19 2 Table of Contracting Parties, Convention of 15 November 1965 on the Service Abroad 20 of Judicial and Extrajudicial Documents in Civil or Commercial Matters, HAGUE CONF. ON 21 PRIV. INT’L LAW, https://www.hcch.net/en/instruments/conventions/status-table/?cid=17 (last visited July 11, 2022). 22
23 3 “[T] the Government of the Federal Republic of Germany objects to the use of methods of transmission pursuant to Articles 8 and 10. Service through diplomatic or consular 24 agents (Article 8 of the Convention) is therefore only permissible if the document is to be 25 served upon a national of the State sending the document. Service pursuant to Article 10 of the Convention shall not be effected.” Declaration 4, Federal Republic of Germany, 26 Convention of 15 November 1965 on the Service Abroad of Judicial and Extrajudicial 27 Documents in Civil or Commercial Matters, HAGUE CONF. ON PRIV. INT’L LAW, https://www.hcch.net/en/instruments/conventions/status-table/notifications/?csid=402&di 28 1 application, Plaintiff also submitted two prior orders by District Judge Cynthia Bashant 2 appointing Ingalls as an international process server to request service on defendants in 3 Mexico under the Hague Convention, and the Declaration of Ingalls submitted in 4 connection with a prior order, explaining how her appointment would not contravene the 5 requirements of the Hague Convention as well as the necessity of a court order to effect 6 service through the Central Authority of Mexico. ECF No. 8-2. 7 Article 3 of the Hague Convention dictates that “[t]he authority or judicial officer 8 competent under the law of the State in which the documents originate shall forward to the 9 Central Authority of the State addressed a request . . . without any requirement of 10 legalisation or other equivalent formality.”4 Hague Convention art. 3 (emphasis added). 11 Under United States law, “[a]ny person who is at least 18 years old and not a party may 12 serve a summons and complaint.” Fed. R. Civ. P. 4(c)(2). See also Marschhauser v. 13 Travelers Indem. Co., 145 F.R.D. 605, 608-09 (S.D. Fla. 1992) (applying Article 3 by 14 reference to Rule 4(c)(2)).
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1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 SOUTHERN DISTRICT OF CALIFORNIA 10 11 STUDY SMARTER LLC, Case No.: 22cv471-LL-BGS
12 Plaintiff, ORDER DENYING MOTION 13 v. FOR APPOINTMENT OF INTERNATIONAL PROCESS 14 STUDYSMARTER UG, et al, SERVER 15 Defendants. [ECF Nos. 7, 8] 16
17 18 This matter is before the Court on Plaintiff Study Smarter LLC’s Ex Parte 19 Application for Order Appointing International Process Server, filed on May 11, 2022, to 20 appoint Crowe Foreign Services of Portland, Oregon to effect service on Defendant 21 StudySmarter UG (“Defendant”),1 a limited liability company existing under the laws of 22 Germany. ECF No. 7. Plaintiff filed a virtually identical successive ex parte application 23
24 25 1 Plaintiff’s complaint and ex parte applications name ten Doe Defendants without making specific allegations as to the Doe Defendants. The Federal Rules of Civil Procedure make 26 no provision for the use of fictitious defendants. See Fed. R. Civ. P 10(a); Molnar v. Nat’l 27 Broad. Co., 231 F.2d 684, 687 (9th Cir. 1956); Rojas v. Sea World Parks & Ent., Inc., 538 F. Supp. 3d 1008, 1030-31 (S.D. Cal. 2021). Plaintiff is advised to review the Federal Rules 28 1 (omitting the statement that Plaintiff has 90 days to effect service on Defendant), 2 declaration, and identical exhibits seeking the same action from this Court on June 30, 3 2022. ECF No. 8. For the reasons discussed below, the Court DENIES Plaintiff’s 4 applications without prejudice. 5 I. LEGAL STANDARD 6 Service of process on a limited liability company in a foreign country may be made 7 in any manner prescribed by Rule 4(f), excepting personal delivery under Rule 8 4(f)(2)(C)(i). Fed. R. Civ. P. 4(h). If service is sought on a defendant in a country that is 9 party to the Convention on Service Abroad of Judicial and Extrajudicial Documents in 10 Civil and Commercial Matters (the “Hague Convention” or “Convention”), opened for 11 signature Nov. 15, 1965, 20 U.S.T. 361, 658 U.N.T.S. 163, compliance with the 12 Convention’s provisions is mandatory. Volkswagenwerk Aktiengesellschaft v. Schlunk, 486 13 U.S. 694, 705 (1988). The primary means of accomplishing service under the Convention 14 is through the receiving country’s Central Authority. Brockmeyer v. May, 383 F.3d 798, 15 801 (9th Cir. 2004). The Convention also permits certain enumerated alternate methods of 16 service if the receiving country does not object, and countries may designate additional 17 methods of service circumscribed by the Convention. See Water Splash, Inc. v. Menon, 137 18 S. Ct. 1504, 1508 (2017); Schlunk, 486 U.S. at 699. Rule 4(f) gives effect to the Hague 19 Convention by incorporating the United States’ treaty obligations into the Federal Rules of 20 Civil Procedure. See Fed. R. Civ. P. 4(f) advisory committee’s note to 1993 amendment. 21 See also Brockmeyer, 383 F.3d at 804 (Rule 4(f)(1) affirmatively authorizes use of a 22 Central Authority under the Hague Convention), 805–06 (Rule 4(f)(3) affirmatively 23 authorizes federal district courts to direct any form of service not prohibited by the 24 Convention if a party obtains prior approval from the court); Rio Props. v. Rio Int’l 25 Interlink, 284 F.3d 1007, 1015-16 (9th Cir. 2002) (court-directed service under Rule 4(f)(3) 26 is as favored as service available under Rule 4(f)(1) unless prohibited by the Hague 27 Convention.) Service in a foreign country is not subject to the general time limits on service 28 1 of process. Fed. R. Civ. P. 4(m); Lucas v. Natoli, 936 F.2d 432, 432-33 (9th Cir. 1991) (per 2 curiam). 3 II. DISCUSSION 4 The United States and Germany are parties to the Hague Convention.2 Germany has 5 objected to receive service by alternate methods, prohibiting service by mail or through 6 judicial agents on a party in Germany.3 Therefore, service to a party in Germany must 7 proceed through its Central Authority. Broad v. Mannesmann Anlagenbau AG, 196 F.3d 8 1075, 1076 (9th Cir. 1999) (noting that Germany requires requests for service of process 9 to be addressed solely to the designated central authority). 10 Plaintiff states that it has retained Crowe Foreign Services (“CFS”) of Portland, 11 Oregon, and its employee Celeste Ingalls, to effect service upon Defendant “by liaising 12 with and working directly with the Central Authority of Germany in accordance with 13 German law and procedure.” ECF No. 8 ¶ 5. Plaintiff submits that “[s]ervice of process via 14 the Hague Convention must be preceded by an Order from this Court appointing an 15 International Process Server to comply with the requests of the German government” and 16 requests that this Court appoint Ingalls “as the international process server to request 17 service in accordance with the Hague Service Convention.” Id. ¶ 6. In support of its 18 19 2 Table of Contracting Parties, Convention of 15 November 1965 on the Service Abroad 20 of Judicial and Extrajudicial Documents in Civil or Commercial Matters, HAGUE CONF. ON 21 PRIV. INT’L LAW, https://www.hcch.net/en/instruments/conventions/status-table/?cid=17 (last visited July 11, 2022). 22
23 3 “[T] the Government of the Federal Republic of Germany objects to the use of methods of transmission pursuant to Articles 8 and 10. Service through diplomatic or consular 24 agents (Article 8 of the Convention) is therefore only permissible if the document is to be 25 served upon a national of the State sending the document. Service pursuant to Article 10 of the Convention shall not be effected.” Declaration 4, Federal Republic of Germany, 26 Convention of 15 November 1965 on the Service Abroad of Judicial and Extrajudicial 27 Documents in Civil or Commercial Matters, HAGUE CONF. ON PRIV. INT’L LAW, https://www.hcch.net/en/instruments/conventions/status-table/notifications/?csid=402&di 28 1 application, Plaintiff also submitted two prior orders by District Judge Cynthia Bashant 2 appointing Ingalls as an international process server to request service on defendants in 3 Mexico under the Hague Convention, and the Declaration of Ingalls submitted in 4 connection with a prior order, explaining how her appointment would not contravene the 5 requirements of the Hague Convention as well as the necessity of a court order to effect 6 service through the Central Authority of Mexico. ECF No. 8-2. 7 Article 3 of the Hague Convention dictates that “[t]he authority or judicial officer 8 competent under the law of the State in which the documents originate shall forward to the 9 Central Authority of the State addressed a request . . . without any requirement of 10 legalisation or other equivalent formality.”4 Hague Convention art. 3 (emphasis added). 11 Under United States law, “[a]ny person who is at least 18 years old and not a party may 12 serve a summons and complaint.” Fed. R. Civ. P. 4(c)(2). See also Marschhauser v. 13 Travelers Indem. Co., 145 F.R.D. 605, 608-09 (S.D. Fla. 1992) (applying Article 3 by 14 reference to Rule 4(c)(2)). The plain text of the Convention makes it clear that no court 15 order is required for a competent individual to request service through the Central 16 Authority of Germany. The prior orders and declaration referenced in support of Plaintiff’s 17 application pertain to the necessity of Ingalls’ appointment to serve defendants in Mexico, 18 and do not provide an adequate and reasoned explanation for why a court order is necessary 19 for Ingalls to request service through Germany’s Central Authority in this case. Counsel 20 21 22 4 Hague Conference on Private International Law, Conclusions and Recommendations 23 Adopted by the Special Commission on the Practical Operation of the Hague Apostille, Evidence and Service Conventions ¶ 47, p.10 (Oct. 28- Nov. 4, 2003) (“it is for the law of 24 the requesting State to determine the competence of the forwarding authorities”), 25 https://assets.hcch.net/upload/wop/lse_concl_e.pdf; United States of America – Central Authority & practical information, HAGUE CONF. ON PRIV. INT’L LAW, 26 https://www.hcch.net/en/states/authorities/details3/?aid=279 (last visited July 11, 2022) 27 ("The persons and entities within the United States competent to transmit service requests abroad pursuant to Article 3 include any court official, any attorney, or any other person or 28 | || for Plaintiff, agents of CFS, or any other individual meeting the requirements of Rule 4(c) 2 || of the Federal Rules of Civil Procedure, may proceed through Germany’s Central Authority 3 || to request service without a court order. See, e.g., Am. GNC Corp. v. GoPro, Inc., No. 18- 4 || cv-00968-BAS-BLM, 2018 WL 6262934, at *1 (S.D. Cal. June 4, 2018) (“Plaintiff may 5 ||serve the Defendants under Rule 4(f)(1) by proceeding through Germany’s Central 6 || Authority”). The Department of State,” Department of Justice,° and the German Missions 7 ||in the United States’ also provide guidance for completing the required forms and effecting 8 || service pursuant to the Hague Convention. 9 Hl. CONCLUSION 10 For the foregoing reasons, the Court DENIES without prejudice Plaintiff's ex parte 11 || applications to appoint international process server [ECF Nos. 7, 8] in their entirety. Out 12 |}of an abundance of caution and to avoid potential delay of service on Defendant 13 || StudySmarter UG, the Court simultaneously with this order issues an order certifying with 14 || an original signature that the summons in this case is a valid one from this Court. 15 IT IS SO ORDERED. 16 || Dated: July 11, 2022 NO 17 CE) 18 Honorable Linda Lopez 19 United States District Judge 20 21 99 > Service of Process, Germany Judicial Assistance Information, U.S. DEP’T OF STATE, https://travel.state.gov/content/travel/en/legal/Judicial-Assistance-Country-Information/ 23 || Germany.html (last visited July 11, 2022). 24 United States Department of Justice, Office of Judicial Assistance, Guidance on Service 25 || Abroad in U.S. Litigation, https://www.justice.gov/civil/page/file/1064896/download (last visited July 11, 2022). 26 27 ||’ Service of Documents between the US and Germany, GERMAN MISSIONS IN THE UNITED 28 STATES, https://www.germany.info/us-en/service/08-Documents,CertificationsandA postil le/service-of-documents/945230 (last visited July 11, 2022).